Applicant operating concrete-batching plant – Council relying upon condition attached to planning permission and issuing enforcement notice requiring removal of plant – Inspector upholding enforcement notice – Validity of condition – Section 14 Town and Country Planning Act 1947 – Application allowed
The owners of Westhorpe Farm, Buckinghamshire (the site), let parts of the site to various companies for both concrete production and mineral extraction. In 1948 the owners and their then lessees applied for planning permission to excavate sand and gravel from the site. On 29 September 1952 the second respondents (the council) granted planning permission subject to,inter alia, condition 4, which stated that “the existing plant and equipment shall not be moved from its present position without the consent of the local planning authority, and upon the completion of working, shall, together with all the buildings, huts or other structures on the site and all gravel and other materials about the site, except where expressly permitted to remain by the local planning authority, be removed from the site and the land covered with sufficient top soil to ensure natural growth and cultivation”.
In 1986 the applicant (Tarmac) acquired the concrete-batching plant and a lease of that part of the site upon which the plant stood. Tarmac subsequently sought a determination from the council, pursuant to section 53 of the Town and Country Planning Act 1971, on the question of whether planning permission was required for the replacement of the batching plant with a modern plant. The council determined that the existing plant and any replacement permitted under the General Development Order 1977 was ancillary to the adjoining sand and gravel workings, and was thus permitted under the 1952 permission and subject to condition 4 of that consent.
Tarmac installed a new plant and began to produce concrete at the site. At a date prior to 19 December 1996 the extraction of sand and gravel came to an end and condition 4 came into operation. On 19 December 1996 the council served an enforcement notice upon Tarmac, which had continued to operate the plant. Following an appeal by Tarmac, the first respondent’s inspector upheld the enforcement notice. Tarmac sought to quash the inspector’s decision, notably on the ground that condition 4 of the 1952 permission was invalid, in so far as it embraced the concrete-batching plant, as it did not “fairly and reasonably relate to the permitted development”.
Held: The application was allowed.
The statement of principle laid down by Lord Denning in Pyx Granite Co Ltd v Ministry of Housing and Local Government [1958] 1 QB 554, endorsed by the House of Lords in Newbury District Council v Secretary of State for the Environment [1981] AC 578 applied. The requirement that the concrete-making plant should eventually be removed did not relate fairly and reasonably, or at all, to the extraction of sand and gravel from the site, granted by the 1952 permission. While the court was restricted in interfering with the inspector’s decision, it was not open to the inspector to find that condition 4, on its wider reading, fell within the council’s powers under section 14 of the Town and Country Planning Act 1947 or that it fairly and reasonably related to the permitted development. The condition could not oblige Tarmac to remove its concrete-making plant from the site.
Martin Kingston QC (instructed by Wragge & Co) appeared for the applicant; Christopher Katkowski QC (instructed by the Treasury Solicitor) appeared for the first respondent; Benedict Sefi (instructed by the solicitor to Buckinghamshire County Council) appeared for the second respondents.
Sarah Addenbrooke, barrister
